US Customs and Border Protection
CBP Headquarters
1300 Pennsylvania Ave. NW
Washington, DC 20229
February __, 2016
Dear Sir/Madam:
Allow me to introduce myself as the Chairman of the Taiwan Autonomy Foundation in Los Angelse.
Many members of my organization, including myself, have U.S. citizenship, in addition to citizenship in our land of birth: Taiwan.
The experience of myself and several associates is as follows. We recently returned from trips to Taiwan, and had the occasion to be asked by U.S. immigration officials: “Do you have dual nationality?”
We certainly want to be honest in all statements which we give U.S. customs officials, however at the same time, we are confused by such a question. On the cover of our passports the words of “Republic of China” are prominently printed. The word “Taiwan” is also indicated.
However, after many years of listening to the announcements of U.S. government officials, our conclusion is that neither Taiwan nor the Republic of China is a “nation” or “state” in the international community. Hence, it is hard for us to understand how the holder of a U.S. passport and a Republic of China passport can be considered to have dual nationality. (Hence, our reply to the above question would be “No”.)
Our conclusion in this matter is supported by the following data –
For many years the "Taiwan" entry in the U.S. Dept. of State publication Treaties in Force has clearly noted that "The United States does not recognize the Republic of China as a state or a government."
The House of Representatives passed the Taiwan Relations Act in 1979. This law stipulates that under US law, the nomenclature of "Republic of China" is not recognized after Jan. 1, 1979.
Executive Branch officials have an announced "One China Policy." Under this official policy, there is no "Republic of China." At the same time, the US government does not recognize Chinese sovereignty over Taiwan.
See --
Dennis Wilder, theSenior Director for Asian Affairs, National Security Council, announced on August 30, 2007, that: "Taiwan, or the Republic of China, is not at this point a state in the international community. The position of the United States government is that the ROC -- Republic of China -- is an issue undecided, and it has been left undecided, as you know, for many, many years."
In the CIA World Factbook entry for Taiwan, under the government section, the nomenclature of Republic of China is not recognized. See --
Government :: TAIWAN
Country name:
conventional long form: none
conventional short form: Taiwan
local long form: none
local short form: Taiwan
The official State Dept. listing of independent states in the world does not include Taiwan as an independent state.
See --
Indeed, the highest ranking document of international law regarding the disposition of Taiwan in the post-WWII era is the Senate ratified the San Francisco Peace Treaty, which entered into force on April 28, 1952. The treaty did not award Taiwan to the Republic of China.
In the 1959 D.C. Circuit case of Sheng v. Rogers, the judges found that Taiwan was not a part of the national territory of the Republic of China (ROC), even though it was administered by ROC authorities. (Such a condition of course corresponds to a status of an “ongoing military occupation”.)
A lengthy essay in the TAIPEI TIMES in late January 2014 fully explained that Taiwan is not the Republic of China.
See --
Colin Powell, the Secretary of State, on October 25, 2004, articulated that: "Our policy is clear. There is only one China. Taiwan is not independent. It does not enjoy sovereignty as a nation, and that remains our policy, our firm policy."
Mandatory Guidance Regarding Contact with Taiwan, issued Sept. 2008 by the State Dept., specifies that:"The United States supports, as appropriate, Taiwan's involvement in international organizations, processes, agreements, and gatherings where statehood is not a prerequisite."
State Dept. officials have on many occasions objected to the raising of the so-called “Republic of China flag” in ceremonies held by TECRO officials or their associates in, or near their premises in Washington D.C. or its environs, including a January 1, 2015 flag raising ceremony. Presumably this is because neither “Taiwan” nor the “Republic of China”are nations.
Additionally, based on the above data, we are hard pressed to understand why the USCBP accepts any passport issued by the “Republic of China Ministry of Foreign Affairs” as a valid travel document for passing through U.S. Customs. Need I point out that the printed data inside of this passport indicates that the holder is a national of the “Republic of China”? How can a non-existent country issue passports?
Does not the recognition of a passport issuing authority named “Republic of China Ministry of Foreign Affairs” by the USCBP violate the provisions Taiwan Relations Act, the Senate-ratified San Francisco Peace Treaty, and the One China Policy of the United States? Other violations could be cited, as listed above.
The Taiwan Relations Act also contains a human rights clause –
The preservation and enhancement of the human rights of all the people on Taiwan are hereby reaffirmed as objectives of the United States.
Again, how can the acceptance of a “Republic of China” passport by the USCBP serve to advance the human rights of the Taiwanese people? Such a passport gives any observer the clear impression that Taiwan belongs to China, but the U.S. government has never recognized such a fact. For additional historical references on this aspect, please refer to the Foreign Relations of the United States series, edited by the State Dept.
See --
Additionally, we would point out that in Taiwan legal circles, the most common reference given for native Taiwanese persons having Republic of China nationality is a military order given by the Republic of China military forces on Jan. 12, 1946. However, that order was never ratified by the Legislative Yuan (Parliament), nor made into a law. More importantly however, such a mass naturalization procedure in territory under belligerent occupation is a serious violation of the laws of war.
The United States government, therefore, would have no reason to regard such procedures as legally valid.
Our organization’s members are not dissuaded by the argument that “Republic of China” is merely a synonym for “Taiwan governing authorities,” as mentioned in the Taiwan Relations Act. In Taiwan, the Republic of China Constitution and legal code is very much in force, and there are criminal penalties for “sedition” against the Republic of China government. These are serious matters, and gross violations of the Taiwanese people’s human rights under the San Francisco Peace Treaty, (which did not award Taiwan to China.)
We would appreciate USCBP’s detailed comments and explanations on (1) the dual nationality issue, (2) the basis under US law for the recognition of “Republic of China Ministry of Foreign Affairs”as the competent authority for issuing passports to Taiwanese persons, which are accepted as valid by USCBP.
We are of course aware of the stipulations of 9 FAM 41.104 N1[1] We are certainly not asking for a statement of this regulation, rather we are asking for the legal rationale whereby the State Dept. has determined that the “Republic of China Ministry of Foreign Affairs” is a competent authority for issuing passports to native Taiwan persons.
The “Republic of China Ministry of Foreign Affairs” cannot be considered the competent authority for issuing passports to native Taiwan persons.BRIEF SUMMARY OF LEGAL RATIONALE
According to a December 2008 Report by the Congressional Research Service (CRS) states that:“ . . . after Japan's defeat in 1945, Taiwan and the Pescadores were assigned to the Republic of China for purposes of post-war occupation.”
The analysis in this CRS Report conforms to the requirements for military occupation as specified in Article 42 of the 1907 Hague Regulations, as quoted in paragraph 351 of U.S. Army Field Manual FM 27-10 The Law of Land Warfare.Moreover, it is an accepted principle of international law that military occupation does not transfer sovereignty.
Actions such as the mass naturalization of the local populace, the promulgation of a new legal code, confiscation of property, are all forbidden in occupied territory. Indeed, these are war crimes, with no statute of limitations.
Accordingly in Taiwan, the mass naturalization of local Taiwanese on January 12, 1946, the promulgation of the Republic of China Constitution, etc. are all entirely illegal.
Additionally, when the Republic of China moved its central government to occupied Taiwan in early December 1949, it was moving outside of China’s national territory, and immediately became a government in exile.
It is beyond dispute that Taiwan remained under Japanese sovereignty until Japan renounced all right, title, and claim in Article 2(b) of the San Francisco Peace Treaty on April 28, 1952. A separate Sino-Japanese treaty was concluded some four months later.
The specifications of the two post war treaties were discussed in the July 1971 Starr Memorandum issued by the State Dept., which held that: .“technical sovereignty over Formosa and the Pescadores has never been settled. That is because the Japanese Peace Treaty merely involves a renunciation by Japan of its right and title to these islands. But the future title is not determined by the Japanese Peace Treaty nor is it determined by the Peace Treaty which was concluded between the Republic of China and Japan.”
Dennis Wilder, the Senior Director for Asian Affairs, National Security Council, announced on August 30, 2007, that: "Taiwan, or the Republic of China, is not at this point a state in the international community. The position of the United States government is that the ROC -- Republic of China -- is an issue undecided, and it has been left undecided, as you know, for many, many years."
Based on the above, Taiwan does not belong to the Republic of China, and the classification of Taiwanese persons as being nationals/citizens of the Republic of China is without any legitimacy whatsoever.
Let us repeat again
Regarding this passport issue, our organization’s members have tried to communicate with the State Department for many years, asking for the legal rationale why “Republic of China” passports can be considered valid travel documents under INA 101(a)(30). However, the State Dept. has not responded. Hence, we kindly request that you DO NOT reply to us by requesting that we contact that Department for full details.
It should also be mentioned that the U.S. Executive Branch has expressed its opposition to Taiwan independence on many occasions. Our organization agrees with this stance. The goal for our organization is to see Taiwan autonomy under the framework of the SFPT. Our views on how to determine the “competent authority” for issuing passports to people in Taiwan are given in the essays on the following website --
Sincerely,
Xxxxxx
xxxxxxx
[1]INTERPRETING“COMPETENT AUTHORITY”[9 FAM 41.104 N1]
The term “competent authority” as used in INA 101(a)(30) means an official whois duly authorized to issue passports by the government of the country ofissuance. The term is not linked with the maintenance of diplomatic relationswith, or recognition by, the United States. Accordingly, the Department willdetermine, on a case-by-case basis, whether a passport-issuing authority is a“competent authority” within the meaning of INA 101(a)(30).